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Be Consistent in Enforcing Anti-Harassment Policies

By Daphne Pierre Bishop, J.D., AWI-CH, Partner & Chair of the Internal Investigations Practice Group at CDF Labor Law LLP  

A picture containing person, wall, person, suit Description automatically generatedAlthough it has been more than three years since the #metoo movement received widespread recognition, a recent survey of entertainment industry professionals suggests that employers still have a lot of work to do. In early 2020, The Hollywood Commission, which was formed to address the problems that led to the #metoo movement, conducted a survey of nearly 10,000 entertainment industry professionals about sexual harassment, discrimination, and bullying in the industry. While 69% of survey respondents reported seeing improvements in efforts to prevent harassment since the #metoo movement went mainstream, harassment remains a persistent problem: more than 60% of female and male respondents reported experiencing gender harassment and more than 40% of female respondents reported experiencing unwanted sexual attention during the last 12 months. This article discusses some of the policies, practices, and procedures employers can implement to further reduce the prevalence of workplace harassment. 

Improve Harassment Reporting Infrastructure 

According to The Hollywood Commission survey, only 28% of respondents who allegedly experienced sexual harassment reported it to their employers. Underreporting of harassment can be due, in part, to a lack of process that makes employees feel safe reporting harassment. 

All employers should have written anti-harassment policies. These policies should instruct employees on how to report harassment and give employees multiple ways to report harassment. In states like California, applicable laws state employers cannot simply instruct employers to report alleged harassment to their direct supervisors. After all, supervisors may be the alleged perpetrators of harassment. As such, anti-harassment policies should inform employees that they can report concerns to individuals outside their direct reporting chain, such as Human Resources, the legal department, or an ombudsman. It is strongly recommended that employers use hotlines, electronic reporting software, or other methods that allow employees to make anonymous complaints. Indeed, more than 90% of The Hollywood Commission survey respondents favored having anonymous tip lines for reporting harassment.  

All employees should be trained on and reminded about the employer’s anti-harassment policies at regular intervals – not only at the beginning of employment or during an annual training session. Company leadership should be trained and re-trained about their obligation to escalate reports about harassment to human resources or upper management. Leaders should be expected to model by example as they set the tone for the company’s culture. This means senior leadership should conduct themselves appropriately, attend anti-harassment trainings, have an open door policy, email staff to periodically remind them about these  policies, periodically discuss anti-harassment policies in staff meetings, and invite employees to share concerns. Moreover, leadership should address potential issues as they arise. For instance, a manager who sees an employee behaving inappropriately should intervene directly or by enlisting human resources. 

Take Concerns about Retaliation Seriously 

In The Hollywood Commission study, victims of alleged harassment reported feeling afraid about retaliation resulting from harassment complaints, including concerns about impacts on their careers, that they would be labeled as “difficult to work with,” and that their concerns would not be taken seriously. These concerns appear justified, as 41% of respondents reported that they experienced some type of retaliatory conduct. To minimize the risks of retaliation against employees who raise concerns about harassment: 

  • Anti-harassment policies should include strong anti-retaliation provisions. Employees should be trained and re-trained on the company’s anti-retaliation policies at regular intervals.

  • When a complaint is made, all parties should be reminded about the anti-retaliation policy. Harassment complaints should be kept as confidential as possible under the circumstances.

  • Employees who are interviewed as part of an investigation of a harassment complaint should be advised to keep information relating the investigation confidential from their colleagues to reduce gossip and protect the integrity of the investigation. At the same time, beware of promising complete confidentiality to witnesses during an investigation, as employers cannot guarantee that all information disclosed during an investigation will remain confidential. 

  • Keep alleged victims and their harassers separate during the pendency of an investigation of alleged harassment, which means taking efforts such as placing alleged harassers on leave, allowing alleged victims to work from home, moving the alleged harasser to a different department.  

  • Investigate allegations of retaliation and discipline employees who are found to have violated the anti-retaliation policy accordingly. 

Be Consistent in Enforcing Anti-harassment Policies. 

Most of The Hollywood Commission’s study respondents (65%) reported a belief that powerful individuals, such as producers and directors, would not be held accountable for harassing less powerful individuals. This perception is not too surprising, as the most visible powerful individuals who have been held accountable for sexual misconduct during the #metoo era have been those with multitudes of alleged less powerful victims, such as Harvey Weinstein, Roger Ailes and Bill Cosby. 

Even the strongest anti-harassment policies and practices will not work if they are not applied consistently – including to the most powerful individuals in an organization. It is especially important to nip bad behavior in the bud when it comes from high-powered individuals because they set the tone at a company, and their bad behavior trickles down through the ranks. For example, if a high-powered individual uses crude language about women in the workplace, they are implicitly allowing others to follow their lead.  

Consistently enforcing anti-harassment and retaliation policies requires meting out the same discipline to above- and below-the-line employees. Human Resources should be empowered to make disciplinary recommendations about employees who are found to have violated anti-harassment and retaliation policies, and management should seriously consider those recommendations in as transparent a fashion as possible. The organization’s governing body, such as the Board of Directors, should be made aware of allegations against high-level individuals and be prepared to make difficult decisions if those allegations are substantiated. While it may be a difficult decision to separate from a powerful individual, it sends a message to the company that harassment will not be not tolerated even by leadership and ultimately behooves the company in improved worker morale and reduced negative press and liability exposure.  

In sum, although some progress has been made in protecting employees from sexual harassment, there are still improvements to be made in the areas of reporting harassment, avoiding retaliation, and consistently enforcing anti-harassment and retaliation policies. 

 

Daphne Pierre Bishop, J.D., AWI-CH, is a Partner & Chair of the Internal Investigations Practice Group at CDF Labor Law LLP, a California-based labor and employment law firm.  Daphne has represented companies with California workforces for nearly two decades. Her experience advising and defending small to Fortune 500 companies in all industries against the gamut of employment-related claims offers her a unique advantage in assisting companies prevent, investigate and resolve employee and institutional misconduct. Her practice focuses on providing internal investigation services as a neutral third-party investigator or a strategic advisor. She can be reached at dbishop@cdflaborlaw.com or (213) 612-6300. 

 

 

 

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